Advocate General Cosmas proposes that the Court recognises as an economic activity the practice of judo by an advanced level amateur sportsman, while leaving to the sporting authorities the power of self regulation in relation to non economic questions concerning the sport
Miss Deliege has been practising judo since 1983. She has obtained excellent results in the under 52 kg category since 1987.
Judo is organised on a worldwide scale by the International Judo Federation I.J.F. On the European level, the federation of the European Judo Union EJU includes the various national federations. In Belgium, the Belgian Judo League organises the international competitions and carries out the selection of athletes for their participation in international tournaments.
At the Court of First Instance of Namur, Miss Deliege claimed that the Belgian federations had improperly impeded her career by not permitting her to take part in the important competitions, in particular the Olympic Games in Barcelona in 1992 and the Olympic Games in Atlanta in 1996. She considers that she carries out an economic activity the freedom of which is guaranteed by Community law.
The Belgian Court raised before the Court of Justice an issue concerning the compatability of a regulation enacted by sporting authorities with Community law, in particular regarding the requirement for a professional sportsman, semi professional or candidate for either position to be in possession of authorisation or to have been selected by its national federation to participate in an international competition. Miss Deliege practices individually a sport which is considered to be amateur. The mechanism for the selection of the sportsmen to the Olympic Games enables the national federation alone to register the sportsmen in these competitions according to national quotas which are fixed beforehand.
The Advocate General firstly underlines in his Opinion that the question raised to the Court of Justice concerns the application of the fundamental principles of freedom to provide services and fair competition within the context of the relationship between sportsmen and their federations.
The problem concerns the question as to whether or not there is an economic character related to the sporting activity of judoka: such a qualification will involve the application of the rules of Community law, in particular those pertaining to the freedom of movement of workers and the freedom to provide services.
The Advocate General analyses the activities carried out by Miss Deliege. In particular, he evaluates the legal nature of the "contributions" that she receives. He considers it unnecessary to examine whether the paid amounts correspond to the exact counterpart of the services provided nor to address the issue of the denomination of the amounts. Rather, the mechanism for the grant of contributions to the athletes is analysed from the point of view of the possibility it gives to the advanced level sportsman, who receives the contributions as a result of his excellent results, to devote himself to the sport as would a professional sportsman.
The Advocate General recognises that in the vast majority of cases of judo there is a lack of an economic element and distinguishes amateur athletes from others who whilst professional sportspersons are legally placed in an intermediate situation, in other words they carry out their activity on a continual basis and receive financial support the objective of which exceeds the mere improvement of their performance. The national court will examine these criteria in order to establish the qualification of the sporting activity in question. In relation to this point, the Advocate General considers that Miss Deliege carries out an economic activity.
The Advocate General examines more generally the relationship between sport and economic activity and states that the closer the link between them, the more relevant the rules of Community law. Sponsorship, which requires the achievement of quality performances by the athletes supporting the advertising services, contributes to the strengthing of this link. A sporting event can also constitute a show involving payment and indeed may be televised providing rights, and offer the possibility of advertisement.
Are the enacted rules concerning the organisation of competitions specifically related to sport and therefore devoid of any economic element? If they are to be considered as such, they should, according to the Advocate General, be outside the application of the principles guaranteeing freedom to provide services. It is recognised that the underlying aim is purely related to sport, the organisation and promotion of the national teams for participation in the Olympic Games. Community law recognises, in his opinion, the right of sporting authorities to a limited power of self management and self regulation of non economic matters. The restrictions on freedom of movement are justified by the public interest (in this case, the interests of the national teams and the need to ensure the representative character of the competitions). Therefore, the Advocate General concludes that the regulations in question which require athletes to obtain authorisation to take part in international tournaments and which limit the number of sportsmen selected to partipate in them, are not contrary to Community law.
Finally, the Advocate General considers that there are insufficient factual and legal points raised in this case to allow for the Court of Justice to come to a conclusion in relation to any violation of competition law. Nevertheless, he likens judoka to a company and its federations to associations of companies but does not state that there has been a violation of the rules on fair competition.
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